Brussels First Instance Tribunal, A. et al v Kingdom of Belgium, Nr. 2020-14-C, 29 April 2020
This case concerns a man who travelled to Syria in 2013 and who was detained in the prison of Al-Hasakah by the Syrian-Kurdish authorities. Relying on several human rights and humanitarian treaties, the man claimed that the Belgian government was under an obligation to repatriate him from Syria. The Tribunal nonetheless held that the applicant was not within the ‘jurisdiction’ of the Belgian State, and that he could also not rely on the Geneva Conventions or the ICC Rome Statute since Belgium was not a party to the armed conflict in Syria. The Tribunal further held that, having travelled to Syria on his own initiative, the applicant was not entitled to consular assistance pursuant to Article 83 of the Belgian Consular Code.
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 25 February 2020
The case concerns an appeal by the Belgian government against an Order of the Tribunal of First Instance of 11 December 2019, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.
The Court recognizes the temporary impossibility for the Belgian State to fully execute the Order within the allotted time. This finding is based on the fact that the Belgian State repeatedly requested the Kurdish authorities for the Belgian State to be allowed to provide consular assistance to the children and to organize their repatriation without their parents. The Kurdish authorities refused this request several times because they could not allow the separation of the children from their parents under Kurdish law. In addition, the security threat was such as to jeopardize the security of the consular mission and the children during their repatriation. For this reason, the Court grants the Belgian State an extension of time to implement the decision.
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019
Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.
The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.
In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.
Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.
Brussels First Instance Tribunal, G. v. Kingdom of Belgium, 19 December 2018
This case concerns a mother suing the Belgian state to enable the children she had with an Islamic State fighter during her stay in Syria, to travel to Belgium. The mother, who is detained in Turkey, used to have the Belgian nationality but currently only holds the Algerian nationality. The children were born in Syria but are living in Turkey and are de facto stateless.
According to the Court, the children had a sufficient connection with neither Syria, Turkey, nor Algeria. By contrast, there was a factual connection with Belgium. Furthermore, while it could be argued that, pursuant to the Convention of 1954 Concerning the Status of Stateless Persons, the claim to obtain travel documents should be directed to the Turkish government, this could not be expected to happen in practice.
Furthermore the Court ruled that, even if there was no specific legal ground obliging the Belgian State to provide the requested travel documents, the State nonetheless had an enforceable legal obligation to act, in light a range of commitments made, such as the general principle of aid and assistance to one’s own nationals, articles 50 and 75 of the Belgian Consular Code, the Convention of 1954 Relating the Status of Stateless Persons, the Convention on the Right of the Child, and article 8 of the ECHR. The Court accordingly ruled the claim to be well-founded and granted the requested provisional measures.
Council Chamber of the Tribunal of First Instance, Federal Prosecutor, Republic of Turkey and F.A. v U.S, K.R. et al., 3 November 2016
The Council Chamber of the Tribunal of First Instance adjudges that the PKK should be considered as a non-State armed group that is party to a non-international armed conflict with the Turkish State under international humanitarian law (IHL). In accordance with the IHL exclusion clause of Article 141bis of the Belgian Criminal Code, this qualification entails that the 42 defendants cannot be prosecuted for ‘terrorist offences’ in connection with their involvement in that conflict as members of the PKK.
In order to establish the intensity and degree of organization required to conclude to the existence of a non-international armed conflict, the Chamber (implicitly) draws from a range of factors, including: the PKK’s armed activities since 1984, the high number of these activities, the use of heavy weapons, the existence of a chain of command, the position of the International Committee of the Red Cross, the formal initiative undertaken by the PKK to comply with international conventions, the territorial control of the PKK over parts of South-East of Turkey (as demonstrated by a call for armistice by the PKK leader in 2013), as well as the conduct of negotiations between the PKK and Turkey.